Monday, 12 February 2018

Showdown for same-sex marriages in Greece

In a more or less anticipated outcome, the Supreme Court of Greece denied a certiorari sought by two Greek men, who concluded a civil wedding on the island of Tilos nearly 10 years ago. The court made a clear distinction between registered partnerships and marriage: Whereas the former is now open both to hetero- and homosexuals, the latter – so the Supreme Court – is not covered by Greek legislation. The final act is expected to take place before the ECHR. 


On June 3, 2008, the mayor of the island of Tilos allowed the celebration of wedding of the appellants, two Greek men, in spite of intensive reaction coming both from the representatives of the Greek Orthodox Church and the Prosecution office. More info here

Following an action of the Prosecutor, the wedding was declared as non-existing by the Rhodes 1st Instance Court. An appeal of the couple before the Dodecanese Appeal Court remained fruitless. More info here

Litigation continued, reaching the Supreme Court. The hearing took place mid December 2016; the ruling was published late August 2017, putting an end to the gay wedding saga in Greece, at least for the time-being.More info here


Initially, the SC made reference to Articles 12 ECHR, 23 of the 1966 International Covenant on Civil and Political Rights, concluding that the above instruments do not give any guidance in regards to the question. It then passed to the famous definition given by Modestinus [Marriage is the union of male and female and the sharing of life together, involving both divine and human law]. The SC focused then on the Greek Constitution, referring to three provisions: Article 4.1 on equal rights; Article 5.1 on the right to develop freely one’s personality; and Article 21.1 on the protection of marriage by the state.

The SC concluded that none of the above provisions are infringed by the prohibition of same-sex marriage in Greece. In particular, the SC stated that sexual freedom, as part of the right protected under Article 5.1, is by no means violated; this becomes evident by the recent reforms on the issue of registered partnership, which is allowed for same-sex couples since 2015. This step however does not mean that same-sex couples are allowed to formalize their relationship by entering into a marriage. If the legislator wished to do so, he would have taken the necessary steps, by amending the pertinent provisions.

In addition, the wording under Article 1367 Greek Civil Code [the intending spouses] should not be construed as covering both heterosexual and same-sex couples. It is a construct which dates back to 1940, and it is self-evident that it refers solely to spouses of a different sex. Beyond that, it has been chosen for purely drafting purposes.

The SC is also aware of the recent case law of the ECHR with respect to the notion of family, which includes same-sex couples; still, the Court continues, the ECHR has not decided on the form which enables same-sex couples to be considered as a family, i.e. by registered partnership or any other fashion.

Finally, the SC acknowledges that many European countries have recognized same-sex marriages. However this could not be a reason for the court to grant the certiorari; this is rather an issue for the Greek legislator, who will weigh whether reforms should take place at a time he sees fit.


It wouldn’t be an exaggeration to say that nobody is taken by surprise with respect to the SC’s ruling. Given the socio-political landscape of the country, the prevailing role of the Greek Orthodox Church and the ambiguities in the law, it was a rather expectable outcome.

In light of this judgment, it is beyond any doubt that same-sex marriages stand no chance of being recognized in Greece; hence, they are excluded from the ambit of the Brussels II bis Regulation. Similarly, Greek courts are not expected to apply foreign law which refers to same-sex married couples (see in this respect Article 13 Rome III Regulation). Same-sex marriages are considered non-existing ipso facto, i.e. no court ruling is needed for declaring the marriage as null and void.  

It seems though that the ball will go to the court of the ECHR; this is at least what the appellants announced. The Hellenic Republic has proven its respect to the rulings of the European Court, most notably in regards to the case of Vallianatos and others v. Greece: Following the ruling of the court, which found a violation of Article 14 in conjunction with Article 8 ECHR, Greece amended its legislation on registered partnerships, by including same-sex couples in its field of application. Some might consider the latter being the final frontier for the country and the Greek society at large. Others might be more optimistic, given that many fortresses of the past have fallen within the last couple of years: Greece passed recently legislation on gender reassignment. In addition, the SC departed from previous rulings which found a public policy violation in the adoption of an adult [see here]. It remains to be seen for how long the ruling of the SC will stand the test of time.

Friday, 26 January 2018

New law on mediation in civil and commercial maters - Some cross border issues

In the course of yet another effort of the Greek Government to fulfil the promises made to its creditors, a new ‘tutti-frutti’ law has been approved by the Parliament. A wide range of open issues has been regulated by Law 4512/2018, published on January 17, one of which is a radical reform of the 2010 law on mediation in civil and commercial maters. There are a number of issues which have been discussed before and after promulgation. This short article will exclusively deal with some intriguing cross border issues, which may arise as a result of the recent reforms.

Articles 178-206 of the law regulate the new mediation landscape. We shall focus on Article 182, which introduces compulsory mediation for a number of disputes. These are in a nutshell: condominium, car accident cases, fees, some family matters, medical liability, industrial property rights (trademarks, patents, designs), and stock exchange transactions. Failure to engage in a mediation attempt is sanctioned with inadmissibility of the proceedings.

First of all, it is the lawyer of the claimant who is required to inform the party about the possibility or the obligation to resort to mediation. Regardless of the result, a respective document signed by the party and the lawyer must be submitted to the court, otherwise the latter will not enter into the merits of the dispute, and order a reopening. 

With respect to the cases falling under the scope of compulsory mediation, the claimant (or his/her lawyer) is obliged to trigger the mediation process by selecting a person from the list of accredited mediators. Once appointed, the mediator shall notify the other party/parties about the date and venue of mediation. Notice may be effected by registered letter, electronically, or by any other legal means. The mediation session has to take place within 15 days following notice, during which both parties shall have to be present with their lawyers. Consumer disputes and small claims are excluded from the party’s duty to attend the session with a lawyer.

The above may work smoothly when all parties are residents of Greece. Still, what if one or (sometimes) both parties are living abroad? 

Regarding the first point (document certifying that the lawyer informed the client on mediation alternatives to litigation), the problem of distance is solved by digital technology: The lawyer sends the document to the client living abroad (fax, e-mail with a scanned copy attached), he prints, signs and sends it back by post. Then the lawyer signs and submits the document to the court. 

The second case however may cause problems. Should the party always travel to Greece, even if there are no visible signs of a settlement? The law stipulates two exceptions: the first one refers to parties of unknown residence. The second allows for the use of digital tools, i.e. online mediation, however only if presence is not possible. It is open to interpretation when a party is actually hindered to attend the mediation session. In addition, digital channels should secure a faultless conduct of the mediation session. Hence, there is still a lot of work in this respect. 

Finally, there is one more issue related to the forms of notification selected by the legislator, regarding the notice of the mediation session to the other party. Is it compatible with the Service Regulation or the 1965 Hague Service Convention to serve documents “electronically”? And what if notice is sent by registered letter to a party residing in a country-signatory member of the Hague Convention, which does not accept postal service? Or should one exclude this notice form the ambit of the above international instruments? 

These, and many more issues, have come to the surface after the enactment of the new mediation law. Fortunately, there is still time to improve things, taking into account that Art. 182 will become effective nine months after publication of the law.